In the Matter of the Proceedings Supplementary to Execution in an Action Entitled William Fiss and Others, Respondents, v. Sebastian Haag, Appellant

In the Matter of the Proceedings Supplementary to Execution in an Action Entitled William Fiss and Others, Respondents, v. Sebastian Haag, Appellant. Supplementary proceedings—an order directing the debtor to pay money to the receiver must be made by the judge, not the court. An order requiring a judgment debtor to pay money over to the receiver of his property appointed in supplementary proceedings, which- order purported to be an order of the County Court granted at a special term thereof and was treated as a County Court order by the parties, is unauthorized, as section 2447 of the Code of Civil Procedure provides that the order shall be made by “the judge by whom the order or warrant was granted or to whom it is returnable. ” Kellogg and Fursman, JJ., dissented. Appeal by the defendant, Sebastian Haag, from an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 24th day of October, 1901, directing the defendant to pay to the receiver of his property the sum of $100 within ten days after the personal service of such order upon him, and providing that if the - said Sebastian Haag should fail to pay said $100 as directed by said order, an attachment should issue against him for disobedience of said order. Also, an appeal from, an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 24th day of October, 1901, denying the motion-made by Sebastian Haag to set aside and vacate said above-mentioned order. Marie Cohn and John H. Dugan, for the appellant. Edgar T. Chajgmmi, Jr., for the respondents. [MAJORITY — Chase, J.:] Chase, J.: The respondents’ judgment was obtained in the Supreme Court. In supplementary proceedings, “ Where it appears from the examination or-testimony taken in a special proceeding, * * "x" that the judgment debtor has in his possession or under his control money * - belonging to him, * * * the judge by whom the order or warrant was granted; or to whom it is returnable, may, in his discretion, * * * make an order directing the judgment debtor * * * immediately to pay the money * * * to the receiver.” (Code Civ. Proc. § 2447.) “ A person who refuses or without sufficient excuse neglects to obey an order of a judge or referee, * * * or an. oral direction given directly to him by a judge or referee, * * * may be punished by the judge or by the court out of which the- execution was issued as for a contempt.” (Code Civ. Proc. § 2457.) The order of October 5, 1901, appealed from purports to be an order of the County Court of Albany county granted at a Special Term thereof. The respondents’ attorney entered the order- and gave notice of entry to appellant’s attorney, describing the order in his notice as “ an order of the County Court duly granted.” It seems to have been intended as a County Court order and it has been treated as such by the parties. As a County Court order it was unauthorized. Orders reversed, with ten dollars costs and disbursements. Pabkbb, P. J., concurred ; Smith, J., concurred in result; Kellogg and Fubsmah, JJ., dissented. Orders reversed, with ten dollars costs and disbursements. Sas^s DETERMINED IN THE SECOND DEPARTMENT IN THE' APPELLATE DIVISION, &jclcftje£, 1902.